IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
VIOLEY FAIRLEY, ) ) Plaintiff, ) ) v. ) 1:25CV83 ) CITY OF DURHAM, ) ) Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Fairley filed suit, alleging unpaid moves to dismiss all FLSA claims overtime/compensatory time off and preceding February 3, 2023 as time- retaliation in violation of the Fair barred. See Docket Entry 13. Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., for (Counts One In sum, the defendant argues that and Two, respectively), unlawful even taking the facts in the light most demotion in violation of Article I, favorable to Fairley as pled, she has Section I of the North Carolina not alleged that the City violated the Constitution (Count Three), and FLSA record-keeping provisions, nor unlawful termination in violation of has she established that her demotion that same provision (Count Four). In and termination were related to the the First Amended Complaint, Fairley alleged unpaid overtime wages. alleges that the defendant, the City of Further, the City maintains that Durham (“the City”), did not pay her because Fairley has not alleged facts owed overtime wages as required by indicating that the City either knew or the FLSA and that when she lodged a showed reckless disregard for complaint regarding the same, her purported violations of the FLSA, the supervisors demoted her and then two-year statute of limitations (versus fired her. three-year) applies to those claims. Finally, the City argues that Fairley’s Before the Court is the defendant’s North Carolina Constitutional claim Motion to Dismiss Counts Two, does not apply to the alleged wrongful Three, and Four, and the record- conduct. keeping FLSA provision alleged in Count One. Finally, the defendant For the reasons set forth below, the receive compensatory “comp” time Court should deny the City’s motion (instead of overtime pay) for all hours to dismiss Count Two, as well as its worked beyond 40 a week “while we motion to limit FLSA claims to the are full time back in the office with two-year statute of limitations. The prior approval.” See id. ¶¶ 18-19. The Court should grant the City’s motion agreement noted “Reminder while to dismiss Counts Three and Four. teleworking no comp time or overtime is given.” See id. I. FACTS Pursuant to the agreement, Fairley Because all well-pled facts are earned comp time when working accepted as true and considered in the more than 40 hours in the office, but light most favorable to the plaintiff, not while working remotely. See id. ¶ below are the facts as Fairley has 20. The City scheduled Fairley to work alleged in the First Amended from 8 am until 4 pm with an unpaid Complaint, Docket Entry 11, half hour lunch break, totaling 37.5 (Compl.).1 See Nemet Chevrolet, Ltd. hours per workweek. Id. ¶ 22. v. Consumeraffairs.com, Inc., 591 However, as alleged, Fairley F.3d 250, 255 (4th Cir. 2009) (citation “routinely and frequently worked modified). more than … 2.5 [] hours outside of her regularly scheduled work shifts The City hired Fairly on November 2, remotely from home.” See id. 2020 as a Senior Fiscal Specialist; in February of 2023, the City promoted On May 6, 2024, Fairley complained Fairley to the title of Accounts Payable to Tim Flora, the City’s Finance Coordinator. See Compl. ¶¶ 13-14. Director, about the City’s failure to Throughout her employment, the City award her comp time-off for remote paid Fairly an annual salary and work hours. See id. ¶ 33. Fairley then classified her as non-exempt under requested and received a copy of the the FLSA, meaning she was eligible to City’s Flexible Working earn overtime wages or accrue Arrangements policy. Id. ¶¶ 34-36. compensatory time off when she Fairly then reached out to Joyce worked in excess of 40 hours in a Cooper, writing: workweek. See id. ¶ 17. Joyce, as our previous On January 28, 2021, Fairley signed conversation you have always an Overtime/Compensatory Time stated to me that on the days we Agreement, wherein she agreed to work from home (remotely)
1 On April 3, 2025, the defendant moved defendant then withdrew Docket Entry 8 to dismiss the original Complaint, see and filed the instant motion in response Docket Entry 8; in response thereto, the to the First Amended Complaint, see plaintiff filed the First Amended Docket Entry 12. Complaint, see Docket Entry 11. The that it doesn’t matter how much yes, you’re the supervisor and we work over because we are really, they should work 8:00 to not eligible for comp or over 4:00. time. I advised you and HR that can’t be correct and read it to … you both. You stated to me many time that it’s different As per my conversation with because we are government and you Friday, I reminded you that hours worked are different prior to signing the Comp from [for-]profit places of work memo from David Boyd you and you are sure that the city and I both worked late many policy is correct. I told you the nights at home and story about the time a place I occasionally from the office, previously worked got in and I was not granted comp trouble for this and they were time. After signing the comp non-profit also. You advised me time memo from David Boyd is just the other day that the when you stated telling [sic] me policy says remote workers is that working remotely, I would not eligible for comp time. not be eligible for comp time.
… Id. ¶ 37.
Once I became my staff That afternoon, Flora reached out to supervisor, I noticed that they Fairley via Microsoft Teams. See id. were working over 40 hours, ¶ 38. Flora “told Fairley that he was logging into work at 5:00 am considering making Fairley and her etc.. and I addressed to you my entire staff work from the office full- concerned [sic] and again time to resolve the compensatory advised that they should not be time-off issue.” See id. Shortly doing that, and it could thereafter, Fairley sent Flora an email potentially cause the City of with the subject line “Retaliation” and Durham problems. You stated attaching a fact sheet from the North that it would not be a problem, Carolina Department of Labor-Wage because they are working and Hour Division, providing remotely. You stated to me information about retaliation in the Viola…we don’t want to raise workplace for complaints about wage that issue again because it issues. See id. ¶ 39. could make us all to have to come back into the office full- Fairly then later emailed Flora: “Did I time, and lord knows we don’t hear you correct when you stated that want that. I asked you if it you may require non-exempt would be ok to stop it and talk employees to come into the office full with them about it. You said time and you asked would I agree to that? I’m salary non-exempt. I feel showed her my acceptance that would be punishing me and my letter from James O’Donnell in staff for raising my concerns about the HR stating that I am salary comp and over time.” See id. ¶ 40. non-exempt with comp/overtime pay. The next day, Flora, Cooper, and Sheilah Faucette, the City’s Assistant I would ask my manager if I Finance Director, met with Fairley. could work late from home. See id. ¶ 41. As alleged, during this Joyce Cooper said to me several conversation, “Flora belittled Fairley times “You don’t have to keep and told her that her email to Cooper asking me about working over ‘is weak’ and told her that ‘if you at home because you don’t get decide to go to the NCDOL [] you will comp or overtime anyway, you not win.’” See id. Flora asked Cooper can work as long as you want who advised Fairley that comp time- remotely”, but you do need off was not rewarded for remote work, approval from working in the and Cooper responded “David Boyd.” office. After expressing my See id. Fairley alleges upon concerns and fear to my information and belief, that David manager many times I Boyd was the City’s Finance Director contacted HR 2021-2023 via prior to Flora assuming the role. See email and in person as late as id. November 2023 to Felecia Nolan. The next day, on May 17, Fairley emailed Wanda Page, the City’s Cit … Manager, and Leonardo Williams, the City’s Mayor: I kept working the overtime because it was needed and I have worked many hours over although I felt that what Joyce 40 hours especially during the had advise me about not having end of the year doing 1099 and comp remote was not right, I other projects in the office started believing that I could be alongside my manager Joyce the one that was wrong since Cooper and mostly from home. she said it was different because My manager had advised me the City of Durham is several times after 4:00 instead government. of working there to leave the office and go home to work After becoming the Supervisor, because when you work from I noticed that my staff was home you do not get Comp or working over 40 hours some Overtime pay. I advised Joyce weeks. Some would log on as that working without comp or early as 5:00 a.m. in the overtime can’t be right and morning and some would come to work early on the days they but supported and provided work in the office, but no one excuses for everything Joyce asked for comp or overtime have said to me even for the pay. I expressed my concern to Comp and over time. Joyce says Joyce Cooper and asked if I she was doing only what she could stop it and talk with was told to do about the Comp them. Joyce said if they work time. Tim asked Joyce who told remotely, it’s ok. I again you that and Joyce said David expressed my concern and how Boyd. Tim ASKED med [sic] if I I did not want it to come back would support my staff having on me. Joyce said, you are their to do time sheets and I told him supervisor, and you can talk only if everyone else have to do with them and ask them to stop. it and that it would be unfair to Upon speaking with my staff, I single out only my staff. Tim was advised that they have been became upset and I reminded told that it is ok to do it Tim that he asked me. I told remotely. After speaking to my Tim that the over time is in an staff about not working over email and Tim said to me “Your and only working 8:00 am to email is weak and if you decide 4:00 some were still logging on to go to wage and hour you will early and working. I expressed not win”. my concern to Joyce Cooper (my manager) and she sent a Id. ¶ 42. reminder email in January 2024. On May 17, 2024, Flora emailed to Fairley, Cooper, and Faucette, stating: … “I believe this was a productive meeting, and while not all issues are On May 16, 2024 Tim called me resolved, we all agreed to the five and asked me if I could come ‘wins’ below.” Id. ¶ 43. Flora then into the office to meet at 3:00. I summarized the “wins” as: inquire [sic] why and he said to discuss your concerns and to 1) “All non-exempt employees hash out your issue with Joyce. qualify for compensatory time or overtime pay regardless of … working in the office or remotely … “In an effort to right Meeting attended: Tim Flora, any wrong, perceived or Sheila Faucette, Joyce Cooper otherwise, Tim has agreed to and me. … Tim would not allow retroactively approve overtime. me to express or say what I Viola is to provide a written need to tell him. He discredits request outlining the everything I said at the meeting circumstances and time comp time-off; Cooper called Fairley requested.” shortly thereafter to discuss how to 2) “Regular work hours are 8 a.m. find documents in support. Id. ¶ 45. to 4 p.m. and there are no The next day, Fairley met with Cooper expectations of non-exempt in his office about an unrelated staff working outside of these matter; Flora came to the office, as parameters without prior well, at which time Fairley left and approval.” returned to her desk. Id. ¶ 46. 3) “Viola is empowered to manage who processes CPP [Contract Soon thereafter, Cooper sent an email Progress Payments] to staff.” to Fairley that attached a voice 4) “Viola would be responsible for recording and transcript of Cooper’s processing voids/stop conversation with Flora. Id. ¶ 47. payments/modifications.” Fairley told Cooper that she (Cooper) 5) “Conflict resolution between shared the attachments with her Joyce and Viola (Fairley). Id. Cooper and Flora then a. Both parties agree that came to Fairley’s office, where they disagreements will be resolved on a one-on-one told Fairley the attachments basis and not involve were sent to her by mistake. other Finance staff.” Flora and Cooper asked if Fairley had listened to the Id. ¶ 43. recording and/or read the transcript. Flora informed On June 3, 2024, Fairley met with Fairley that Cooper filed a Bertha Johnson-Winbush, the City’s complaint with him regarding Deputy City Manager and described Fairley’s complaints about the May 16 meeting with Flora, unpaid overtime/earned Cooper, and Faucette. Johns- compensatory time-off. Before Winbush asked Fairley: ‘Do you want Fairley could respond, Cooper your job?’ and ‘Do you like your job?’ yelled at her stating that the Johnson-Winbush told Fairley that recording didn’t have anything she supported Flora and Cooper and on it that Fairley could use advised Fairley that she ‘can’t go against them. Flora around complaining about wages and additionally told Fairley that hours and not expect to get the “you now know how it feels reaction you got from Tim and when you complained about the Joyce.’” Id. ¶ 44. comp time and sent that letter to upper management.” Flora On June 6, Flora emailed Fairley, and Cooper began falsely requesting that she provide accusing Fairley of causing documentation substantiating her issues and making false claimed unpaid overtime/earned complaints. Flora attacked Fairley for “always wanting to City Managers. When I asked have things your way and about what is said about becoming defensive when they intimidation in the transcript don’t.” Flora then threatened Tim says Joyce filed a Fairley’s employment because complaint stating she feels she wrote the email to Wanda intimidated by you because you Page and Leonardo Williams[.] mentioned to her wage and hour. Id. ¶ 48. Id. ¶ 51. Johnson-Winbush called A little while later, Flora returned to Fairley later that day, per Fairley’s Fairley’s office and told her “Joyce is request, “advised Fairley not to meet not your friend. You are not to talk to one-on-one with Flora or Cooper her about anything else.” Fairley tried anymore and instead have email to speak but Flora interrupted. Flora discussions with them,” and told her leaned across Fairley’s desk and that the City provides counseling stated, “you are not to talk to her, eat services, as Fairley had told her she lunch with her, or leave with her. She was experiencing suicidal ideations. is your boss, not your friend.” Fairley See id. ¶ 53. again attempted to speak and Flora interrupted her, stating, “I don’t On June 11, Fairley emailed Flora believe anything you say.” Flora then between 12-17 emails with multiple left Fairley’s office. Id. ¶ 49. attachments supporting her claims for comp time-off for overtime hours That same day, Fairley emailed worked. See id. ¶ 55. Six days later, Johnson-Winbush, including the Flora emailed Fairley, requesting a audio recording and stating: “After meeting the next day to walk through receiving this and Tim and Joyce the “methodology” for determining talking to me the way they talked to what comp time-off Fairley was owed. me today. I am leaving taking the See id. ¶ 58. Later that day, Flora remaining of the day off from work emailed Fairley his computation, sick, I feel sick, my blood pressure is calculating that “the City owes you up and shaking.” See id. ¶ 50. Fairley’s 303.5 hours of comp time. That email continued: number includes any time-and-a-half hours worked over 40 hours.” See id. When I try to talk to Tim and ¶ 62. Flora attached the worksheets he Joyce about the attached used to “make sure [he] was capturing recording and transcript, that is everything and used to determine the when he says to me now you number of hours in a week worked know how it feels when you over 40 hours.” Id. Flora further complained about the comp noted that once they came to an time and send that letter to agreement, he would “work with upper management and talk to payroll to pay out any comp time over 240 hours, since the policy of the City with the bulk of the work done is to pay out anything over 240 by management. I take your hours.” Id. response of declining this afternoon’s meeting as a refusal Fairley ultimately wrote Flora: “I to understand the process and would like to request to cancel the in consider your behavior person resolution meeting and inappropriate. Further, as you communicate via e-mail.” See id. have refused to meet, I stand ¶¶ 63-65. Fairley then challenged my calculation. Flora’s calculation, and stated: “As an effort to move on from the wages and Id. ¶ 69. comp time that is owed to me I will consider accepting the time that you That same day, Fairley forwarded have provided as long as I am paid out Flora’s email to Johnson-Winbush the 284 hours worked @ straight time and carbon copied Flora and Faucette. and 19.5 hours of comp time is posted See id. ¶ 70. She added: to me.” See id. ¶ 65. I ask not to meet in person due Fairley emailed Flora the next day, “I to the history and fear of the feel that this complaint from Joyce way Tim talk and treats me and Cooper and you Tim Flora on Friday due to my mental and physical June 7, 2024 and other actions is state from his and Joyce retaliation for talking about Wage and treatment. What behavior is Labor and exercising my (FLSA) Fair inappropriate? Tim sent me the Labor Standards Act. I feel that I will time and comp information for Continue to be retaliated against review and now as usual, if I especially during time of my have a voice or have anything to evaluation.” See id. ¶ 66. Fairley then say or reply this is the lodged a complaint with the City’s treatment I get from him. This Human Resources department. See is not acceptable and I find it id. ¶ 67. hostile and retaliatory. I also put on the e-mail this morning On June 18, Flora emailed Fairley: that I will consider accepting the amount of time he have put I have given you ample as long as I am paid for my opportunities to provide hours that I worked and is due documentation to bolster your to me, the hours that I should assertions regarding extra have been paid the “Raw hours hours worked. My requests worked” the 2.50 hours up to have been met with resistance. the 40 hours week because I I have worked to accommodate were paid for 37.5 hours weekly your claims based upon limited = 284 hours per Tim at straight information provided by you time. The 19.5 hours of comp time not be paid out, but The City’s disciplinary policy related recorded as comp time. to demotions provides, in relevant part, that “[a] Department Director Id. Two days later, a representative of may demote an employee in pay grade the HR department advised Fairley and decrease the employee’s salary that “an investigation was ongoing and job responsibilities, as regarding her complaint.” Id. ¶ 71. appropriate, for such a time as is Shortly thereafter, Fairley sought necessary to correct deficiencies in job treatment for “suicidal ideations from performance, job behaviors, or job the fear, stress, and depression cause qualifications if there is a suitable by Flora and Cooper’s actions[.]” Id. position in the department.” Id. ¶ 76. ¶ 72. It further states that “[p]rior to the effective date of the demotion, a pre- Fairley alleges that from June 20 disciplinary conference must be held through July 18, she “attempted to and the employee must be given an participate in the investigation and opportunity to respond to the provide any supporting documents or proposed demotion. If the demotion information” to HR, but was is to occur, the employee must be reminded that “she [Fairley] filed the given an [Employee Notice Form complaint and needed to be patient.” (“ENF”)] which must indicate the Id. ¶ 73. On July 18, the HR point of effective date of the demotion, new contact emailed Fairley, informing salary, and required duties[.]” Id. her that the investigation had ended and “her complaint about retaliation “The Pre-disciplinary notice form was unsubstantiated.” Id. ¶ 74. must contain the date, time, and location of the conference … [and] the On July 26, Flora informed Fairley proposed level of discipline and [] that “due to her complaint … he felt detailed specifics about the Fairley did not trust him anymore[.]” accusations or charges against the Id. ¶ 75. Flora further advised Fairley employee and the factual basis for the that she “was being demoted from the disciplinary action.” Id. ¶ 77. “Once Accounts Payable (Fiscal the employee is noticed via the Pre- Coordinator) role back to the Senior disciplinary Conference Notice Form, Fiscal Specialist role,” and that “she the conference can occur as soon as needed to vacate her office and move possible but no earlier than three (3) to her old cubicle.” Id. Flora issued business days from the date of notice.” Fairly a written disciplinary action Id. “for working outside of her normal scheduled hours without prior Fairley alleges that despite this policy, approval from her supervisor,” which Flora did not provide her with a Pre- failed to indicate that “Fairley was disciplinary Conference Notice Form, being demoted.” Id. nor did he schedule or conduct such a conference. Id. ¶ 78. Fairley alleges upon information and belief that Flora did not include Fairley’s As to the first alleged offense, the form demotion on the Employee Notice stated that Form “to avoid Durham’s pre- disciplinary conference requirement.” An investigation into Viola’s Id. ¶ 79. behavior was initiated by Christine Collum, Assistant On August 5, Fairley told Meredith Finance Director on August 6, “Kelly” Robertson, the City’s former 2024 after an employee spoke Administrator, that she had been to Joyce Cooper about Viola’s demoted and because of that, she comments to the employee would no longer be training her. Id. about Viola’s Human ¶ 83. On August 7, Cooper and Resources investigation. On Christine Collums, the City’s Assistant August 7, 2024, Viola was asked Finance Director, held a meeting with about communicating to others Fairley over Microsoft Teams, at about her investigation. Viola which time Cooper advised Fairley stated she only shared with “that an investigation was being other that she was being moved conducted regarding Fairley’s alleged from her office. Viola denied disclosure of information relating to discussing any other details of the complaint she filed with Human the investigation with others. Resources.” Id. ¶ 84. Five days later, Further investigation showed Cooper instructed Fairley to work that Viola has shared details of remotely for the remainder of the the investigation with multiple week. Id. ¶ 85. On August 16, over a employees. Microsoft Teams meeting with Cooper and Collums, Collums advised Id. ¶ 89. As the second offense, the Fairley that “she was being form stated: terminated and provided her with a Pre-disciplinary Conference Form,” One false statement made by that set the conference for August 19. Viola was that she was Id. ¶ 87. demoted. Viola denied making this statement to anyone; The form alleged four offenses: 1) however, multiple employees creating an “uncomfortable work confirmed Viola has made that environment”; 2) “[m]aking false statement to them[] … Another and/or disparaging comments about statement made by Viola was employees”; 3) not following an related to inappropriate agreed upon directive; and 4) refusing behavior exhibited by her to “train an employee per her supervisor and the Finance supervisor’s direction and failing to Director. This behavior end conversations when directed to included yelling and use of a do so.” Id. ¶ 88. condescending tone with employees. The investigation In sum, Fairley alleges that Flora determined that Viola has miscalculated the total number of made false statements to hours she worked in excess of 40 over multiple employees. a three-year period, and that he awarded her comp time off at a 1:1 rate Id. ¶ 90. As to the third offense, the rather than the FLSA-required 1:1.5 form alleged that “[a]n employee rate. See id. ¶ 25. Specifically, Flora informed Joyce that Viola told the determined Fairley had worked employees she was recording 169.75 hours of compensable employees. During the investigation, overtime during a three-year period multiple employees acknowledged prior to the filing of the instant Viola made the comment to them she matter2 and so awarded her 169.75 of had recorded employees.” Id. ¶ 91. As comp time-off instead of 254.625, for to the fourth offense, the form alleged a disparity of 84.88 comp time-off multiple instances where Fairley hours. See id. ¶¶ 25, 29. And, despite “would turn the conversation to the regularly working in excess of 40 investigation” and would not end a hours per workweek from February 3, conversation when requested to do so. 2022 through June of 2024, the City Id. ¶ 92. only paid her for earned overtime and/or provided comp time-off one Fairley alleges that these alleged time. See id. ¶ 27. offenses were “pretextual” and intended to “cover up the true reason On August 9, 2024, the City for terminating Fairley’s compensated Fairley for 83.4 hours of employment; being that she comp time-off and awarded 232.50 complained about unpaid comp time-off hours to her bank. Id. overtime/unearned compensatory ¶ 31. On August 23, 2024, following time-off in violation of the FLSA.” Id. her termination, the City ¶ 93. compensated Fairley for the remaining 232.50 hours of comp On August 19, Fairley arrived at her time-off. Id. pre-disciplinary conference; a City police officer escorted her to HR, II. PROCEDURAL where Flora gave Fairley her POSTURE belongings and requested that she turn in her key and badge. Id. ¶ 96. On February 3, 2025, Fairley filed suit Collums emailed Fairley a copy of the against the City, alleging claims of ENF that same day, notifying her that FLSA violations – unpaid termination was effective August 19, overtime/compensatory time-off 2024. Id. ¶ 98. (Count One) and retaliation (Count Two), and violations of the Article I,
2 Fairley alleges that Florda determined hours of compensable overtime during that Fairley had worked 303.5 unpaid her employment in total. Section 1 “fruits of one’s labor” clause Scott v. City of Durham, No. 1:20-CV- of the North Carolina Constitution 558, 2021 WL 3856168, at *2 arising from alleged unlawful (M.D.N.C. Aug. 27, 2021), but the demotion (Count Three) and unlawful complaint’s allegations should “allow termination (Count Four). See Docket the court to draw a reasonable Entry 1. The City moved to dismiss inference that the defendant is liable and Fairley then amended the for the misconduct alleged,” Int’l complaint; in response, the City Refugee Assistance Project v. Trump, withdrew its original motion to 961 F.3d 635, 648 (4th Cir. 2020) dismiss but now moves to partially (cleaned up). dismiss the First Amended Complaint, arguing that Counts Two, On a motion to dismiss, courts view Three, and Four fail to state a claim the allegations in the complaint as under Federal Rule of Civil Procedure true, drawing all inferences in the 12(b)(6). See Docket Entries 8, 11, 12, plaintiff's favor. See Twombly, 550 at 14. The City further moves the Cour to 555–56 (2007); Langford v. Joyner, dismiss any FLSA claims arising prior 62 F.4th 122, 124 (4th Cir. 2023). The to February 3, 2023 as time-barred. purpose of Rule 12(b)(6) is “to test the See Docket Entry 14. Fairley has sufficiency of a complaint and not to responded in opposition and the City resolve contests surrounding the has replied. See Docket Entries 17, 18. facts, the merits of a claim, or the The matter is ripe for disposition. applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, III. DISCUSSION 483 (4th Cir. 2006). But courts are not required to “accept as true ‘legal “To survive a motion to dismiss, a conclusions drawn from the facts’ or complaint must contain sufficient any other ‘unwarranted inferences, factual matter, accepted as true, to unreasonable conclusions, or ‘state a claim to relief that is plausible arguments.’” Just Puppies, Inc. v. on its face.’” Ashcroft v. Iqbal, 556 Brown, 123 F.4th 652, 660 (4th Cir. U.S. 662, 678 (2009) (quoting Bell 2024) (quoting Giarratano v. Atl. Corp. v. Twombly, 550 U.S. 544, Johnson, 521 F.3d 298, 302 (4th Cir. 570 (2007)). Legal conclusions “must 2008)). be supported by factual allegations” that amount to more than A. FLSA Statute of Limitations. “unadorned, the-defendant- unlawfully-harmed-me The Fair Labor Standards Act of 1938 accusation[s].” Iqbal, 556 U.S. at 678 (FLSA), 29 U.S.C. § 201, et seq., (citing Twombly, 550 U.S. at 555). A provides in relevant part that “no plaintiff is not required to prove her employer shall employ any of his case in the complaint, see, e.g., employees … for a workweek longer Robertson v. Sea Pines Real Est. Cos., than forty hours unless such 679 F.3d 278, 291 (4th Cir. 2012); employee receives compensation for his employment in excess of the hours Cir.1993)). Negligent conduct is above specified at a rate not less than insufficient to meet this standard, see one and one-half times the regular Desmond v. PNGI Charles Town rate at which he is employed.” See 29 Gaming, LLC, 630 F.3d 351, 357 (4th U.S.C. § 207(a)(1). “As a ‘remedial and Cir. 2011) (“Desmond II”). “An humanitarian statute,’ the FLSA seeks employer acts with reckless disregard to ‘protect all covered workers from of the FLSA where it ‘should have substandard wages and oppressive inquired further into whether its working hours.’” Chavez-Deremer v. conduct was in compliance with the Med. Staffing of Am., LLC, 147 F.4th [FLSA] and failed to make adequate 371, 384 (4th Cir. 2025) (first quoting further inquiry.’” Chavez-Deremer v. Salinas v. Com. Interiors, Inc., 848 Jerry’s Caring Hands, Inc., No. 1:24- F.3d 125, 133 (4th Cir. 2017); then CV-00213-JRR, 2025 WL 2687344, at quoting Barrentine v. Arkansas-Best *19 (D. Md. Sept. 19, 2025) (quoting Freight Sys., Inc., 450 U.S. 728, 739 29 C.F.R. § 578.3(c)(3)). (1981)). “Any employer who violates the provisions of [29 U.S.C. § 206 or Here, the City does not move to § 207] shall be liable to the employee dismiss Fairley’s FLSA unpaid or employees affected in the amount overtime/compensatory time-off of their unpaid minimum wages, or claim for failure to state a plausible their unpaid overtime compensation, claim, it simply asserts that the facts, as the case may be, and in an as pled in the First Amended additional equal amount as liquidated Complaint, do not establish willful damages.” 29 U.S.C. § 216(b). These violation of the same, and thus the claims are subject to a two-year two-year statute of limitations statute of limitations from when such applies, encompassing only claims claims accrue, or three years if the that accrued within two years of the violation if “willful.” See 29 U.S.C. filing of the complaint, that is, § 255(a). between February 3, 2023 and February 3, 2025. In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988), the While a motion to dismiss under Rule Supreme Court defined willful, for 12(b)(6) “generally cannot reach the purposes of this subsection, as those merits of an affirmative defense, such situations where the employer “either as the defense that the plaintiff’s claim knew or showed reckless disregard for is time-barred,” the district court may the matter of whether its conduct was evaluate the merits “if all facts prohibited[.]” “The question of necessary to the affirmative defense whether an employer acted willfully is clearly appear on the face of the generally a question of fact.” Calderon complaint.” Goodman v. Praxair, v. GEICO Gen. Ins. Co., 809 F.3d 111, Inc., 494 F.3d 458, 464 (4th Cir. 130 (4th Cir. 2015) (citing Martin v. Deiriggi, 985 F.2d 129, 136 (4th 2007) (en banc) (emphasis and their claims at this stage.” Alcorn v. alteration omitted). George Mason Mortg., LLC, No. RDB-15-2727, 2016 WL 3440261, at Here, the plaintiff asserts this is not *4 (D. Md. June 23, 2016). such a case. And, indeed, courts within this Circuit have viewed Even if such a finding were granting a motion to dismiss certain appropriate at this stage in the FLSA claims as time-barred at the proceedings, Fairley’s allegations pleading stage with a skeptical eye. As would survive. She asserts that the this Court has recently confirmed in City’s “violation of the FLSA was Rose v. Harloe Management Corp., willful, intentional, and taken with No. GLR-16-761, 2017 WL 193295, at reckless disregard for [her] rights.” *4 (D. Md. Jan. 17, 2017), [b]ecause See Aviles-Cervantes, 276 F. Supp. 3d the question of whether [a at 491 (finding plaintiffs’ FLSA claim defendant’s] alleged [FLSA] adequately pled willfulness based, in violations were willful is not an part, on allegations that the defendant element of plaintiff[s’] claims; but “acted willfully or with reckless rather an anticipat[ion of] a disregard in failing to pay [them] and limitations defense that [the] the other class members in defendant[ ] may raise, [plaintiffs] do[ conformance with the requirements ] not need to allege specific facts that of the FLSA.”). While the allegation is [the] defendant[ ] willfully violated conclusory in nature, the First the FLSA.” See Aviles-Cervantes v. Amended Complaint contains Outside Unlimited, Inc., 276 F. Supp. multiple instances where Fairley 3d 480, 491 (D. Md. 2017) (internal raised the issue of receiving quotations and citation omitted) compensatory time-off after 40 hours (alterations in original). See also worked in a workweek. See, e.g., Aguilar v. ALCOA Concrete & Compl. ¶¶ 21, 30, 33, 37, 41. This is Masonry, Inc., No. TDC-15-0683, sufficient for purposes of Rule 2015 WL 6756044, at *2 (D. Md. Nov. 12(b)(6). See generally White v. City 4, 2015) (rejecting defendant’s of Richmond, No. 3:18-CV-504-JAG, argument in its motion to dismiss that 2019 WL 2141924, at *3 (E.D. Va. May plaintiff did not adequately plead 16, 2019) (finding plaintiffs’ assertion willfulness because it is an affirmative that “reporting overtime resulted in a defense); Ford v. Karpathoes, Inc., verbal battle... with administration to No. ELH-14-0824, 2014 WL 6621997, even get paid for it” created genuine at *9, (D. Md. Nov. 20, 2014) issue of fact as to willfulness, (“[P]laintiffs do not need to allege precluding summary judgment) specific facts supporting their (internal quotation omitted); see also allegation that defendants willfully Akers v. Cnty. of Sampson, No. 7:22- violated the FLSA.”). Thus, while CV-43-FL, 2022 WL 16936034, at *7 plaintiffs “may bear the burden to (E.D.N.C. Nov. 14, 2022) (finding that prove willfulness, … [Rule 12(b)(6) ] the plaintiff adequately pled does not require that Plaintiffs prove willfulness with “allegations . . . of altering time records, and ignoring Cir. 2008). This subsection of the repeated requests by the sheriff for FLSA makes it unlawful “to discharge different pay accounting, despite or in any other manner discriminate alleged awareness of the against any employee because such requirements of the FLSA[]”). employee has filed any complaint or instituted or caused to be instituted Thus, this Court should deny the any proceeding under or related to City’s motion to dismiss all FLSA this chapter.” 29 U.S.C. § 215(a)(3). overtime and/or compensatory time- And, as the Fourth Circuit has noted, off claims accruing between February per the Supreme Court directive, 3, 2022 and February 3, 2023.3 courts should not “interpret[] or appl[y this provision] in a narrow, B. FLSA retaliation claim. grudging manner.” See Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, The City next argues that the Court 364 (4th Cir. 2000) (internal should dismiss Fairley’s FLSA quotation and citation omitted). retaliation claim (Count Two) for failure to plead a causal connection “A plaintiff asserting a prima facie between the protective activity and claim of retaliation under the FLSA adverse actions suffered. The Court must show that (1) he engaged in an should deny the motion as to this activity protected by the FLSA; (2) he Count, as well. suffered adverse action by the employer subsequent to or “The retaliation provision of the FLSA contemporaneous with such is a central component of the Act’s protected activity; and (3) a causal complaint-based enforcement connection exists between the mechanism.” See Darveau v. employee’s activity and the Detecon, Inc., 515 F.3d 334, 340 (4th employer’s adverse action.”4 Wai
3 The City also moves the Court to well-settled that a plaintiff claiming Title dismiss a “recordkeeping” component of VII or ADEA violations, which also Count One, see Docket Entry 14, at 12, employ the same burden shifting but as Fairley correctly notes, the FLSA framework, “need not plead facts does not provide for a private cause of constituting a McDonnell Douglas prima action related to recordkeeping, nor does facie case of discrimination to survive a she advance one, see Docket Entry 17, at motion to dismiss.” Johnson v. Lemonds, 10-11. No. 1:15CV410, 2016 WL 447494, at *1 4 Courts have applied the McDonnell (M.D.N.C. Feb. 4, 2016) (denying Douglas burden-shifting framework to defendant’s motion to dismiss retaliation FLSA retaliation claims. See Jackson v. claims, citing Swierkiewicz v. Sorema Mayor & City Council of Baltimore City, N.A., 534 U.S. 506, 514-15 (2002)). “Yet, No. CIV JFM 08-3103, 2009 WL in reviewing motion to dismiss rulings, 2060073, at *2 (D. Md. July 14, 2009), the Fourth Circuit continues to speak of a citing Conner v. Schnuck Mkts., Inc., 121 prima facie Title VII retaliation claim. F.3d 1390, 1394 (10th Cir. 1997). And it is Similarly, in analyzing motions to Man Tom v. Hosp. Ventures LLC, 980 have been materially adverse to a F.3d 1027, 1042 (4th Cir. 2020), citing reasonable employee because the Darveau, 515 F.3d at 340. “[A] employer’s actions ... could well plaintiff asserting a retaliation claim dissuade a reasonable worker from under the FLSA need only allege that making or supporting a charge of his employer retaliated against him by discrimination.” See Darveau, 515 engaging in an action ‘that would have F.3d at 343. It need not constitute “a been materially adverse to a materially adverse employment reasonable employee’ because the action.” See id. ‘employer’s actions ... could well dissuade a reasonable worker from Fairley alleges both, as demotion and making or supporting a charge of certainly termination constitute discrimination.’” See Darveau, 515 adverse actions under any F.3d at 343 (quoting Burlington N. & employment framework. The plain Santa Fe Ry. Co. v. White, 548 U.S. language of the statute includes 53, 57 (2006)). prohibition on “discharging” any employee for retaliatory purposes. 1. Fairley alleges she engaged in See Alley v. Quality Eco Techs., LLC, protected activity. No. 3:20CV355, 2021 WL 1196188, at *10 (E.D. Va. Mar. 29, 2021) (“[T]he When analyzing retaliation claims, it Court also finds that QET took is well-settled that “[c]omplaints adverse action against Plaintiffs raised through internal company Atkinson and Bratton when it procedures are recognized as terminated their employment.”). And protected activity.” Roberts v. Glenn the City does not dispute that Fairley Indus. Grp., Inc., 998 F.3d 111, 122 has adequately alleged this prong of (4th Cir. 2021). And the City does not the analysis. See Docket Entry 14, at dispute that Fairley has adequately 14-18. pled this prong of the analysis. See Docket Entry 14, at 14-18. 3. Fairley alleges a causal connection between the 2. Fairley alleges that she suffered protected activity and adverse adverse action by her employer. action.
As to the second prong, a “plaintiff The City disputes that Fairley has asserting a retaliation claim under the adequately pled causality, the third FLSA need only allege that her prong of a prima facie retaliation employer retaliated against her by complaint. This prong “requires engaging in an action “that would either: (1) that the retaliation closely
dismiss retaliation claims, district courts facie case.” See id. (collecting cases). in the Fourth Circuit continue to rely on However, even applying the more decisions evaluating, at or after summary exacting of the two standards, Fairley’s judgment, the McDonnell Douglas prima retaliation claim survives. followed the protected activity, or (2) “if you decide to go to the NCDOL, you that the plaintiff put forth a sufficient will not win.” See id. ¶ 41. On June 7, explanation for the delay between the 2026, Flora informed Fairley that protected activity and the alleged Cooper had filed a complaint with retaliation.” Reardon v. Herring, 201 Flora about Fairley’s “complaints F. Supp. 3d 782, 784 (E.D. Va. 2016) about unpaid overtime/earned (citations omitted). There is no hard compensatory time-off[.]” See id. and fast rule as to “how closely the ¶ 48. In a meeting between Cooper, adverse action must follow the Flora, and Fairley on that day, “Flora protected conduct,” but “even a ten- and Cooper began falsely accusing week delay ‘is sufficiently long so as to Fairley of causing issues and making weaken the inference of causation false complaints” and “Flora then between the two events.’” See id. at threatened Fairley’s employment 785 (quoting Perry v. Kappos, 489 F. because she wrote the email to Wanda App’x 637, 643 (4th Cir. 2012)). Page and Leonardo Williams” Where the time between the conduct regarding the comp time-off issue. See and the adverse action “is too great to id. establish causation based solely on temporal proximity, a plaintiff must Fairley then provided Flora, per his present other relevant evidence ... to request, documentation for establish causation, such as retroactive comp time-off and they continuing retaliatory conduct and engaged in a back-and-forth animus in the intervening period.” regarding the proper figure. See id. Perry, 489 F. App’x at 643 (internal ¶¶ 55, 58-66, 69. Fairley lodged an quotations omitted). See also Lettieri official complaint with HR on June v. Equant Inc., 478 F.3d 640, 650 (4th 18. See id. ¶ 67. Cir. 2007) (“Specifically, evidence of recurring retaliatory animus during On July 26, 2026, the City demoted the intervening period can be Fairley. See id. ¶ 75. On August 19, the sufficient to satisfy the element of City fired her. Id. ¶ 96. causation[.]”). Almost three months passed between As alleged, Fairley complained to Fairley’s May 6 complaint to Flora Flora on May 6, 2024 about the City’s and her demotion on July 26. The failure to award comp time-off for Fourth Circuit has specifically noted: remote work performed in excess of “Although neither we nor the 40 hours per workweek. Compl. ¶ 33. Supreme Court have adopted a bright What followed was a series of back- temporal line, we have held that a and-forth communications regarding three- or four-month lapse between the same with Fairley, Flora, and the protected activities and discharge Cooper. See id. ¶¶ 36-40. Ten days was too long to establish a causal later, Cooper allegedly told Fairley connection by temporal proximity that one of her emails was “weak” and alone[.]” Pascual v. Lowe’s Home Ctrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006) (unpublished). When examining continuing retaliatory conduct and animus, the The question then, is whether Fairley case law does draw a distinction has pled “continuing retaliatory between “ordinary tribulations of the conduct and animus in the work place ... petty slights or minor intervening period.” See 489 F. App’x annoyances that often take place at at 643 (internal quotations omitted). work and that all employees See also Reardon v. Herring, 201 F. experience[,]” see Burlington N. & Supp. 3d 782, 786 (E.D. Va. 2016) Santa Fe. Ry., 548 U.S. at 68, and (“[A]n employer steadily working materially adverse actions. Cooper’s toward effecting an adverse action comments on May 16 may debatably and subsequently taking that action at constitute a petty slight or minor the first convenient opportunity, annoyance, but filing a complaint combined with articulated continuing against Fairley, accusing Fairley of animus, can meet the plausibility making false claims, and threatening standard for pleading causality, at Fairley’s employment hew closer to least at the motion to dismiss stage.”). retaliatory conduct and animus, To that end, Fairley has alleged: falling during the intervening period. Drawing all reasonable inferences in • May 16: Cooper stated one of Fairley’s favor here, she has the emails related to the issue sufficiently alleged a causal was “weak” and if she went to connection between the protected the NCDOL she “would not activity and the adverse action. See, win” e.g., Williams v. Newport News Sch. • June 7: Cooper filed a Bd., No. 4:20-CV-41, 2021 WL complaint against Fairley for 3674983, at *16 (E.D. Va. Aug. 19, Fairley’s complaint about 2021) (finding that temporal unpaid overtime/earned proximity between filing of EEOC compensatory time-off charge and adverse action was too • June 7: Cooper and Flora lengthy to demonstrate causation, but accused Fairley of making false “the temporal proximity between complaints Plaintiff's internal complaints • June 7: Flora threatened [January 23, 2017] and the Fairley’s employment for Defendant's placement of Plaintiff on advising Page and Williams of administrative leave [February 6, the alleged unpaid 2017] and involuntary transfer overtime/earned [March 23, 2017] is sufficient to allow compensatory time-off the Court to infer causation at this [motion to dismiss] stage in the Fairley’s demotion then occurred proceedings.”). approximately five weeks after she filed a complaint with HR. This claim should survive and the not create or expand a [s]tate’s public City’s motion to dismiss it should be policy.” Time Warner Ent.- denied. Advance/Newhouse P’ship v. Carteret-Craven Elec. Membership C. North Carolina Constitutional Corp., 506 F.3d 304, 314 (4th Cir. claims. 2007) (alteration and quotation omitted). The City next moves to dismiss Counts Three and Four of the First Article I, Section 1 of the North Amended Complaint, both premised Carolina Constitution provides in on the “fruits of their own labor relevant part that “all persons are ... clause.” The Court should grant the endowed by their Creator with certain motion as to these counts. inalienable rights,” including “the enjoyment of the fruits of their own As this is a state law claim, the Court labor.” N.C. Const. art. I, § 1. The must predict how the North Carolina North Carolina Supreme Court has Supreme Court would rule on a noted that “[o]ur Constitution is more disputed issue of state law. See Twin detailed and specific than the federal City Fire Ins. Co. v. Ben Amold- Constitution in the protection of the Sunbelt Beverage Co., 433 F.3d 365, rights of its citizens” and that “[w]e 369 (4th Cir. 2005). The court first give our Constitution a liberal looks to opinions of that court, see interpretation in favor of its citizens Stahle v. CTS Corp., 817 F.3d 96, 100 with respect to those provisions which (4th Cir. 2016) and if there no such were designed to safeguard the liberty governing opinions, the opinions of and security of the citizens in regard the North Carolina Court of Appeals, to both person and property.” See treatises, and “the practices of other Corum v. Univ. of North Carolina, states.” See Twin City Fire Ins. Co., 413 S.E.2d 276, 290 (N.C. 1992). 433 F.3d at 369 (quotations and citation omitted). “In predicting how The court has further extrapolated the highest court of a state would this right to encompass “a public address an issue, this court must employee’s liberty interest in ‘follow the decision of an intermediate pursuing her chosen profession free state appellate court unless there is from unreasonable actions of her persuasive data that the highest court employer.” Tully v. City of would decide differently.’” Soto v. Wilmington, 810 S.E.2d 208, 214 Town of Rolesville, 729 F. Supp. 3d (N.C. 2018) (referencing Presnell v. 533, 543 (E.D.N.C. 2024) (quoting Pell, 260 S.E.2d 611, 613 (1979)). In and citing Town of Nags Head v. Presnell, a school employee alleged Toloczko, 728 F.3d 391, 398 (4th Cir. that the principal fired her based on 2013) and quoting Hicks ex rel. Feiock false allegations, and “while she had v. Feiock, 485 U.S. 624, 630 & n.8 no cognizable property interest in (1988)). However, the court “should continued employment, … her complaint does however sketch a See Soto v. Town of Rolesville, 729 F. colorable claim that a constitutionally Supp. 3d 533, 544 (E.D.N.C. 2024) protected ‘liberty’ interest may be at (“This policy is not a promotional stake. One of the liberty interests policy. It is a discretionary pay policy. encompassed in the Due Process Thus, Soto cannot use it to seek relief Clause of the Fourteenth Amendment under Article I, Section 1 [of the North is the right ‘to engage in any of the Carolina Constitution].”) (internal common occupations of life,’ citation omitted). unfettered by unreasonable restrictions imposed by actions of the Despite Tully’s plain language in this state or its agencies.” See Tully, 810 regard, Fairley encourages the Court S.E.2d at 214 (quoting Meyer v. to extrapolate upon it, arguing that Nebraska, 262 U.S. 390, 399 (1923)). “[a]lthough Tully established the framework in a promotional context, The right, however, is “not without nothing in the court’s reasoning limitation.” See id. at 216. “[T]o state explicitly limits ‘the fruits of their own a direct constitutional claim grounded labor’ claim to the promotional in this unique right under the North process only.” See Docket Entry 17, at Carolina Constitution, a public 17. This is a direct invitation to “create employee must show that no other or expand a [s]tate’s public policy,” state law remedy is available and which Fourth Circuit precedent plead facts establishing three clearly prohibits. See Time Warner elements: (1) a clear, established rule Ent.-Advance/Newhouse P’ship, 506 or policy existed regarding the F.3d at 314. To the extent that Fairley employment promotional process insists the North Carolina Court of that furthered a legitimate Appeals’ decision in Mole v. City of governmental interest; (2) the Durham, 866 S.E.2d 773 (N.C. Ct. employer violated that policy; and (3) App. 2021) (Mole I) changes the the plaintiff was injured as a result of calculus, the North Carolina Supreme that violation.” See id. Court specifically ordered that it had no precedential value, see Mole v. City The City argues that Fairley has not of Durham, 884 S.E.2d 711 (N.C. met the second prong, that is, the First 2023) (per curiam) (Mole II). And the Amended Complaint does not allege district court’s suggestion in Akers v. “a clear, established rule or policy” County of Sampson, No. 7:22-CV-43- regarding “the employment FL, 2022 WL 16936034, at *7 promotional process.” And indeed, it (E.D.N.C. Nov. 14, 2022), that “failure does not. While the First Amended to follow ‘pre-disciplinary procedures Complaint sets forth the City’s . . . designed to further a legitimate disciplinary policy, see Compl. ¶¶ 76- government interest’” violated Article 77, 94, it is not a promotional process I, Section 1 relied specifically on Mole and so does not meet the pleading I and was issued in advance of Mole II. requirements established by Tully. The North Carolina Supreme Court had the opportunity to apply this IV. CONCLUSION clause to pre-disciplinary procedures . and explicitly passed. Thus, Tully It is therefore RECOMMENDED remains the standard and its language that the Court grant in part and deny is clear. Because Fairley has not in part the defendant's Motion to alleged a violation of a promotional Dismiss, in that the Court should process, her claims reliant on Article grant in part the Motion to Dismiss as I, Section 1 of the North Carolina to Counts Three and Four, dismissing Constitution fail and it is those claims, and otherwise deny the recommended that they be dismissed. Motion.
Vann Gibson McFadden United States Magistrate Judge
June 10, 2026 Durham, North Carolina